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The History of the High Constables of Edinburgh
Chapter I

The word "Constable" is, by some authorities, derived from the Saxon words "Koning" and "Stapel," signifying a support of the King; and by others from the Latin words "Comes" and "Stabuli," denoting a master of the horse. The latter derivation is that adopted by Spelman, Du Cange, and others, and has reference probably to the duties of that officer, well known in the Empire, who had to regulate all matters of chivalry, tilts, tournaments, and feats of arms, which were performed on horseback.

Such also was the duty of the Constable of France, one of the great officers of State, who, in virtue of his office, had the chief command of the army, and took cognizance of military offences. The office was suppressed by an edict of Louis XIII., but was revived by Napoleon I., who constituted it one of the six grand dignities under the French Empire. On the restoration of the Bourbon Dynasty in 1814, however, it was finally abolished.

In England, the office of Lord High Constable was instituted immediately after the Norman Conquest, both the name and the office being, according to Blackstone, borrowed from the French. The Constable of England was also an officer of the highest dignity, with duties, powers, and jurisdiction very similar to those of France. He and the Earl Marischal were jointly judges of the Court of Chivalry,—a court which has fallen into entire disuse, but which had jurisdiction over pleas of life and limb arising in matters of arms and deeds of war, as well out of the realm as within it. In right of his office, he was always summoned to Parliament as "Constabularius Angliae." Like many of the great offices of State of ancient origin, the High Constableship was hereditary, and passed by inheritance in the line of the families of De Gloucester and Bohun, Earls of Hereford, and afterwards in the line of their heirs-general the Staffords, Dukes of Buckingham. On the attainder and execution of the third Duke of Buckingham for high treason, in the thirteenth year of the reign of Henry VIII., all his honours were forfeited to the Crown, and the office of Lord High Constable of England ceased to be hereditary. Since that event, it has only been conferred on special occasions, such as coronations, the trials of peers, &c, and then pro hac vice. At the last three coronations, viz., those of George IV., William IV., and Her present Majesty, the late Duke of Wellington acted as Lord High Constable of England.

In Scotland also, the office of Lord High Constable is one of great antiquity. Edward was Constable in the reign of Alexander I., and between that time and 1308 the office passed through the families of De Morville, the Lords of Galloway, De Quincey Earl of Winchester, and Cumyn Earl of Buchan. On the attainder of John Earl of Cumyn, in 1308, the office was conferred on David Earl of Athole; and on the forfeiture of his honours and estates in 1314, it was granted by King Robert the Bruce to Gilbert de Hay, knight, the ancestor of the noble family of Erroll, by whom it is still retained. The honours and privileges of the Constable of Scotland were not less distinguished than those of the Constables of France and England, and were very similar in character. He had the command of the army, was proper and sole judge in military affairs, and besides, possessed a criminal jurisdiction which extended to all matters of riot, disorder, blood, and slaughter committed within four miles of the King's person, or of the Parliament or Council representing the royal authority in the absence of the Sovereign. The office was reserved by the Treaty of Union, and by the act for the abolition of heritable jurisdictions in Scotland, 20 George II. c. 43 (1746).

The name of "constable" was given also to the keepers or governors of the castles of the King or great Barons. Such were the constables of the Tower of London, of Dover, Windsor, Chester, and other fortresses, to the number in the time of Henry II. of 1115. Every manor, it was held, should include one such fortress, bearing the name of the manor, and ruled by a constable. These offices of constable, or "castellan," as they were frequently termed, were often hereditary. Every constable exercised a criminal jurisdiction within the district attached to his castle, in the same way as the sheriffs did within their respective bailiwicks; but the mode in which they and other royal officers exercised their jurisdiction in the trial of pleas of the Crown, excited so much complaint that an express clause was inserted in Magna Charta, 1215 ( 24), prohibiting every "Sheriff, Constable, Coroner, or other our bailiffs," from "holding pleas of the Crown." Reference is again made in the Statute of Westminster (3 Ed. I.), c. 15, to the same description of constables as "constables of fees," alluding to their perquisites as keepers of the prisons, which formed an important part of all ancient castles. In this character their oppressions called forth the statute, 5 Henry IV. c. 10 (1403), which, after reciting "that divers constables of castles," under "colour of their commissions" as justices of the peace, "take people to whom they bear evil will, and imprison them within the said castle till they have made fine and ransom with the said constable for their deliverance," enacted that "none be imprisoned by any justice of the peace, but only in the common gaol," saving the "franchise" of the lords and others who have gaols. This statute, remarks Tomlins, "seems to have put an end to a race of tyrants, who, by their misconduct, had rendered themselves odious to the people."

In Scotland we find the same office of constable of castles. Throughout the kingdom, and especially in the more important towns, there existed royal castles, established at once for the defence of the country and the preservation of order. Each of these castles was governed by an officer called a "constable," who enjoyed certain lands attached to the office, known as "constable lands," and exercised jurisdiction, frequently civil as well as criminal, over a circumscribed territory around his fortress. From these offices, Chalmers conjectures, may be deduced those jurisdictions in Scotland called "constabularies," several of which—the constabularies of Haddington and Linlithgow for example—continued to exist till comparatively recent times.

Many of these offices of constable became hereditary in particular families. Thus the constableship or keepership of the castles of Dunstaffnage, Carrick, Skipness, and others, was vested in the family of Argyle. The constable-ship of Forfar belonged to the Earl of Strathmore; that of Elgin to the Earls of Moray; the Earls of Huntly were the hereditary constables of Inverness. The constableship of Nairn was held by the family of Calder; that of Dundee was held successively by the Scrymgeours of Dudhope, by Lord Halton, and by Graham of Claverhouse; the Kennedys of Carmucks were constables of Aberdeen; the Erskines of Dun were constables of Montrose; the Earls of Annandale were constables of Lochmaben; and, subsequent to 1580, the constableship of Dumbarton Castle was possessed successively by the Dukes of Lennox and Montrose.

Others of these offices were granted for life, like that of Haddington to William Lindsay of the Byres; but some, and among these probably the most important, as requiring in an especial manner a delectus persona, like the constableships of the castles of Edinburgh, Stirling, and during the earlier portion of its history, Dumbarton, were conferred during the royal pleasure, for a period of years, or for life.

Some of these constables of castles, like the Lord High Constable, had the power to appoint, and exercised their office by, deputies. In several cases, the sheriffship of the county within which the royal castles were situated, was conjoined with the office of constable. Thus the sheriffship, as well as the constableship, of Elgin, was held in the reign of David II, by the Earl of March, who conveyed both offices to William de Wallibus; the sheriffship of the shire, and the constableship of the castle, of Dumbarton, were held successively by the Earl of Menteith and by others; the sheriffship of the county, and the constableship of the castle, of Edinburgh, were held by the same individuals during the English occupation, and also, it is said, at the Restoration; and in like manner there were associated with the constableships of the castles of Roxburgh, the sheriffdom of Teviotdale, of the Castle of Dumfries the sheriffdom of Nithsdale or Dumfries, of the Castle of Threve the stewardship of Kirkcudbright,6 and of the Castle of Lochmaben the sheriffship of Wigton.

It would also appear to have been the practice of the constables of royal castles to hold municipal offices in the burghs adjoining. The practice was prohibited by the act of the Parliament of James III., 1469, c. 5, which enacts "that na capitane nor constable of the King's castellis, quhat toune thai evir be in, sail beir office within the said toune as to be alderman, bailzie, dene of guild, thesaurare, na nai other officiare that may be chosing be the toune, fra the tyme of the next chosing furth to-cum." It did not, however, prevent Sir William Kirkcaldy of Grange, George Douglas of Parkhead, and the Earl of Arran, from acting both as provosts of the city and constables or captains of the castle of Edinburgh in 1569, 1576, and 1584.

Most of these constables of castles in Scotland had by grant, or claimed on the ground of prescription, a right to proclaim in the burghs adjoining the castles of which they were the keepers such fairs as had been established there, to levy the customs belonging to these fairs, to exercise criminal jurisdiction within these burghs while the fairs lasted, and to apply the fines and escheats of delinquents to their own use. These powers, granted originally, according to Lord Fountainhall, for the preservation of the King's peace in burghs, at times when "there was a great resort and confluence of strangers, and much bargaining and drinking, and so a probable fear of quarrels," which the ordinary magistrates might not be able to put down without the "auxiliary assistance" of the constable and his forces, appear to have been often exercised most oppressively, and to have formed the subject of frequent complaint. It was to remedy this state of matters, and on the complaint of "the universal burghs," that an Act was passed in the Parliament of James II., 1457, c. 9, prohibiting the taking of distresses of goods of little quantity "for auld use and custum," and regulating the exactions and distresses in regard to cattle and goods brought to market in large quantities. This prohibition was renewed and extended by an Act of the Parliament of James III. 1469, c. 9, which enacts that the extortions referred to shall be "forborn in tyme tocum, and na sic extorsiones be takin of the kingis liegiis under the payn of punycioune of thair personis at the kings will, and to be put fra the executione of their office for a zeir to cum."

So much were these rights and privileges regarded as parts and pertinents of the office of constable, that they,did not need to form the subject of special grant. When a royal castle is disponed either in property or custody, the infeftment thereof, says Stair, "carries therewith not only the bounds of the castle but the dependencies thereof, as gardens, orchards, parks, meadows, and other ground, possessed by the king or keeper for the use of the castle, and all rents, annuities, jurisdictions, and privileges thereunto belonging, which may be instructed by their charters, their court books, or other writs or instruments, and even by witnesses proving long possession; so," adds he, "though an infeftment of constabulary bear only in general offlcium constabularii cum feodis et divoriis ejusdem, yet it was found [in the case of the Earl of Kinghorn v. the Town of Forfar, 18th July 1676] to extend to the proclaiming and riding of fairs anterior to the constitution of the office, and exercising criminal jurisdiction in the town where the fairs were held during these fairs, but not to extend to other fairs recently granted by the King, or to any jurisdiction at other times."

About the same time that the decision in the case of the Earl of Kinghorn was pronounced, however, Lord Halton, Treasurer-Depute and Constable of Dundee, would appear to have obtained from the Privy Council a decree, finding that, as constable, he had the haill criminal jurisdiction within that Burgh firivatively, and the civil jurisdiction cumulative and on this and other decrees obtained by that official from the Court of Session, as it was then "packed," and of which he was one of the judges, the Magistrates and burghers of Dundee appear to have been subjected to a system of petty despotism, which, even in those days, "caused great outcry." Although the privileges thus recognised were exorbitant and in excess, according to Fountainhall, of what "the Scrymgeours, former constables of Dundee, who were haughty and great men," ever possessed, the reports of these cases illustrate the nature of the powers and perquisites of the office of constable, and so are worthy of perusal.

A still inferior order of constables were those whom the Bishops and Barons, following the example of the Sovereign, appointed keepers of their castles, and who, according to Chalmers, exercised authority over their peculiar district. Of this he gives as an instance the case of William de Landeles, Archbishop of St Andrews, who, in 1383, granted to John Wymes of Kirkaldie, and his heirs male, the constableship of the castle and city of St Andrews, together with some lands, and a power to substitute constables in case of minority.

All the inferior constabularies in Scotland were abolished by the Act 20 George II., c. 43, which, however, expressly reserved to the possessors, their heirs and successors, the whole lands, feu and farm duties annexed to these offices. The bailies of burghs, observes Bankton, must exercise the constables' jurisdiction in relation to fairs, now that these offices are extinguished.

Out of the high magistracy of constable, says Lambard, an English lawyer, quoted both by Blackstone and by Mackenzie, were drawn the inferior constables of Hundreds in England, from which country, says Mackenzie, we have borrowed the office of constable, and made it subservient to the Justices of the Peace. The connection between offices so dissimilar as those of the Lord High Constable, or even the constables of castles, and those of high and petty constables, is unintelligible, without a reference to those Anglo-Saxon institutions which form the basis of much that is most valuable in our national character and political constitution. With the Anglo-Saxon, as with other branches of the Teutonic race, all political relations rested on the basis of family and kindred. His relation to the State was that of one of a family whose members were bound to render mutual aid against violence; and this principle availed not only for the protection of the country against foreign aggression, but for the preservation of order and the prevention of crime, by the maintenance of a system of police adapted to the state of society as it then existed. The country was divided into various parts: first and primarily, into Towns or Townships, which, in the Saxon acceptation of the term, included originally the enclosure surrounding the homestead or dwelling of the thane or lord, but was gradually extended to the whole of the land which constituted the domain. Every township had its lord, and the ceorls resident in it elected a gerefa, or reeve as chief officer, and "four good and lawful men," who, with the reeve, represented it in the courts of the hundred and shire. In order both to facilitate the organization of the inhabitants for military purposes, and to afford better security against crime, recourse was had, at a later stage of Anglo-Saxon development, to an old, and probably an originally military, division of the country into Tithings, each of which included the families of ten freemen, and was presided over by one of the principal inhabitants annually elected by the others for that purpose, and called the tithing man or head-borough, and in some countries tors holder or borough ealder. In one or other of these tithings, every freeman, whose rank and possessions were not in themselves a sufficient guarantee, was enrolled, and as each member of the tithing was responsible for the good conduct of the remaining nine, and so was supplied with a motive for vigilance, the tithings of the kingdom were in fact its police,—the most effective system possible in such a state of society. But the tithings did not limit their supervision to cases of unlawful violence and crime. They took cognizance of all matters which "compromised the public weal, or touched upon the rights or well-being of others." The next division was that of Hundreds, or Wapentakes as they were termed in the more northern counties, each hundred including ten tithings, or one hundred families. The chief officer of the hundred appears to have been called by different names at different times: greve (gerefa), ealderman, comes stabuli, or bailiff} The hundred court met usually once a month, and was attended by the thanes whose demesnes were within its boundaries, and by the four men and the reeve of each township. It was presided over by the ealderman or earl, assisted by the bishop. The next great division was the Shire, composed of an indefinite number of hundreds, and presided over by the comes, ealderman or earl, and the bishop. Each shire had also its vice-comes or reeve, who, in the absence of the ealderman, presided over the shire or county courts, in conjunction with the bishop, and is still known as the sheriff [s/iire-reeve]. In ancient times the sheriff was annually elected by the freeholders of the county, but now the judges, certain great officers of State, and several of the Privy Council, meet once every year in Exchequer, and propose three persons to the Sovereign, who appoints one to be Sheriff for the year. The county court was attended by all the thanes in the county, the four men and reeve of each township, and by twelve men chosen to represent each hundred, but it is doubtful whether any but the thanes had a voice in this court.

Such were the divisions of the Anglo-Saxon body politic at the time of the Conquest, and great as were the changes effected by the Conqueror, these divisions were not substantially altered. Feudalism was indeed introduced, but the ancient system of the Saxon laws was retained, and accordingly we find a writ or mandate of Henry III. (1216-72), providing "that in every hundred there should be constituted a chief constable, at whose mandate all those of his hundred sworn to arms should assemble and be observant to him, for the doing of those things which belong to the conservation of the King's peace." This is stated to be the first instance in which reference is made in any instrument to the "chief constable" of hundreds; but there is little room for doubt that an officer with corresponding duties existed in Anglo-Saxon times, and that the office itself, under another name, is of much earlier origin. Again, when the statute of Winton or Winchester4 ordered every man between fifteen and sixty years of age, according to his estate and degree, to provide a determinate quantity of arms to keep the King's peace, two "constables" were appointed to be chosen "in every hundred and franchise," to see that such arms were provided, and to present the defaults of armour and of the suits of towns and of highways, &c. The enactments of this statute,—changed by the 4th and 5th of Philip and Mary, c. 2, as regards the description of the weapons to be provided,—were not repealed till the reign of James I., in 1604. The constables thus appointed are what are called constabulari capitales, or high constables, to distinguish them from the class of officers of like nature, but inferior authority, who were appointed for manors or townships, and tithings, and who are called sub-constabularii or petty constables. The earliest reference to this subordinate officer under the name of "constable," is probably the writ or mandate of Henry III., to which allusion has been made, and by which it is provided, "that in every village or township there should be constituted a constable or two, according to the number of the inhabitants." It has, however, been repeatedly acknowledged by great law authorities, that the constable is "one of the most ancient officers in the realm for the conservation of the peace;" and Coke, connecting him with the institution of frankpledge, under the old institution of the tithing, identifies him with the tithing-man or head-borough. So also Blackstone remarks, that in most places the petty constable unites the two offices of tithing-man or head-borough, and of constable and assistant to the high constable in the duty, common to both, of keeping the peace.

The constable of the hundred is elected at the leet or tourn of the hundred, or by the justices of the peace. Until the passing of the recent Statute of 7th and 8th Victoria, c. 33, he was charged with important responsibilities connected with the levying of local rates, and he has still a variety of special duties imposed upon him which it is unnecessary to describe. The petty constable is chosen at the leet, or where there is no leet, at the tourn; sometimes by the suitors, and sometimes by the steward, and now in many towns and parishes by the parishioners, all according to ancient and particular usage. In common with the high constable, it is the duty of the petty constable to repress felonies, and keep the peace, of which both are conservators by the common law. They have also a variety of duties to discharge similar to those of the constables in Scotland. These duties have reference, inter alia, to the arresting of felons; the suppression of disorderly houses and persons ; the following of the hue and cry under the statute of Winchester; the apprehension of persons going armed, under the Act of Edward III., c. 3 ; the searching for, and apprehending of, night walkers and suspicious persons, either by night or by day (Edward III., c. 4); the punishment of drunkenness (James I., c. 5); the prevention of Sunday profanation (Carl. I., c. 1. and 29; Carl. II., c. 7); the levying of penalties on profane swearers (10 George II., c. 21); the enforcement of the laws against vagrants, &cl

Thus, then, in England, we have the office of constable, essentially military in its gradations, beginning as far back as the Norman Conquest with the Lord High Constable, one of the chief officers of State, whose prerogative it was to command the army and take cognizance of all military affairs. Inferior in rank we find the constables of castles, royal and baronial, still military, but entrusted at one time with the conservation of the peace and the exercise of the civil duties of justices; and stretching back to an antiquity probably still more remote, we find the constables of hundreds and of tithings, originally the military leaders and overseers, in matters of arms, of the freemen able to bear arms within their respective divisions,—the constables of tithings bound to see that those under them faithfully performed watch and ward, with all its attendant duties,—and the constables of hundreds entrusted each with the superintendence of the ten tithing men of his hundred. And then, as society progresses, and the early arrangements of watch and ward give place to the police system of modern times, and as parochial divisions are adopted for the purposes of local government, the chief officers of the hundred and of the tithing of Anglo-Saxon times become respectively the high constables and petty constables of the present day.

In Scotland, also, we find the Lord High Constable and the constables of castles with prerogatives and jurisdictions similar in character, and as extensive as those of the corresponding offices in the neighbouring kingdom. We have, however, none of the Anglo-Saxon divisions into hundreds and tithings or townships; and the organization which existed in England previous to the Conquest, for the preservation of order by the appointment of conservators of the peace—an organization which originally rested on a basis essentially popular—was scarcely possible in Scotland for many centuries after that event. These conservators, wardens or keepers of the peace, appointed originally by the freeholders in the County Court before the Sheriff, and subsequently by the Crown, were, by the 34th of Edward III., c. I. (1361), empowered to try felonies, and entitled Justices; while in Scotland the first reference to Justices of the Peace is contained in the Act 1587, c. 57, which empowered the Sovereign to appoint Justices of the Peace. Again, "chief constables" of hundreds, and "constables" of villages or townships, are, as we have seen, ordered to be appointed, by a writ of Henry III. (about 1252) ; and this order, as regards constables of hundreds, is renewed by the Statute of Winchester in 1306; while in Scotland the first general Act for regulating the appointment and duty of constables is that of 1617, c. 8.a Six years previous to this time, no doubt, the Constables of Edinburgh were originated, but this was done under the authority of Acts of the Privy Council in 1608 and 1611. Both of these Acts of the Privy Council, as well as the Act of Parliament of 1617, it will, however, be observed, are of a date subsequent to the accession of James VI. to the throne of England (1603), and subsequent, it must be presumed, to his and the Scottish parliaments having discovered how well the English system of constables was fitted to enable the Crown to exercise its increased authority, and to repress civil disorder. That the office of constable thus instituted in Scotland was borrowed from, and moulded after, that of the constableship of hundreds and tithings in England, the similarity not only of name, but of many of the duties, leaves little room for doubt. We may, therefore, regard the Constables of Edinburgh under their modern title of High Constables, as the offspring of the venerable Anglo-Saxon institutions of the sister country.



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